United States District Court, M.D. Alabama, Northern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
SUSAN RUSS WALKER, Chief Magistrate Judge.
On April 19, 2012, federal inmate Harold Olenda Peagler ("Peagler") filed this pro se motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. Doc. No. 1. Peagler challenges his 2006 guilty-plea convictions and resulting sentence for various federal firearms offenses. The government argues that Peagler's § 2255 motion is time-barred because it was filed after expiration of the one-year limitation period. Doc. No. 4. The court concludes that the government is correct and that the § 2255 motion should be denied because it was not filed within the time allowed by federal law.
The timeliness of Peagler's § 2255 motion is governed by 28 U.S.C. § 2255(f). That section provides:
A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of-
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.
28 U.S.C. § 2255(f).
On October 12, 2006, Peagler pled guilty to two counts of being a felon in possession of a firearm and one count of being a felon in possession of ammunition, all in violation of 18 U.S.C. § 922(g)(1). On February 1, 2007, the district court sentenced Peagler to 120 months in prison. Judgment was entered by the district court on February 5, 2007.
Peagler appealed, and on August 3, 2007, the Eleventh Circuit issued an opinion affirming his convictions and sentence. United States v. Peagler, 238 Fed.App'x 577 (11th Cir. 2007). The mandate of the appellate court was issued on September 4, 2007. Peagler did not seek certiorari review in the United States Supreme Court. By operation of law, his conviction became final on November 2, 2007, 90 days after the Eleventh Circuit's issuance of its August 3, 2007, opinion. Under 28 U.S.C. § 2255(f)(1), Peagler had until November 3, 2008, the first business day after November 2, 2008, to file a timely § 2255 motion. His § 2255 motion filed on April 19, 2012, is untimely under § 2255(f)(1).
Peagler contends he is entitled to retroactive application of the United States Supreme Court's holdings in Lafler v. Cooper, ___ U.S. ___, 132 S.Ct. 1376 (2012), and Missouri v. Frye, ___ U.S. ___, 132 S.Ct. 1399 (2012), which he says renders his § 2255 motion timely under 28 U.S.C. § 2255(f)(3). Lafler and Frye, both of which the Supreme Court decided on March 21, 2012 (less than a year before Peagler filed his § 2255 motion), recognized that the Sixth Amendment guarantees a defendant the right to effective assistance of counsel during the plea-bargaining process. See 132 S.Ct. at 1384; 132 S.Ct. at 1405. Peagler alleges that his trial counsel was ineffective in plea ...